Can You Be Arrested - Or Sued - For Viewing Or Sharing Nude Celebrity Photos? Here Are Some Relevant Laws

On several occasions over the past few weeks hackers have posted onto the Internet stolen nude photos of various celebrities. Several of the victims, obviously perturbed at the outrageous invasion of their privacy, have issued statements threatening to “sue” or “prosecute anyone who posts” the images, and the FBI has also announced that it has launched an investigation. Many members of the public and media – myself included – have condemned the stealing and sharing of such images as a crime; one popular Forbes piece even referred to the act as a “sex crime.”

But, is the sharing of these photos really a sex crime, or even a crime at all? Can people who share the images really be prosecuted? And what about the threats of lawsuits – how serious are they? And, if those involved cannot easily be punished, do we need new laws in our country to protect all of us from these, and similar, evildoers?

I discussed this issue with Fernando Pinguelo, Chairman of the Cyber Security & Data Protection division of law firm, Scarinci Hollenbeck; here are some points to think about:

Depending on how he or she originally obtained the photos – whether by hacking iCloud, brute force account password cracks, phishing passwords from victims, or some other method – the original hacker who obtained the photos from the celebrities without permission likely ran afoul of criminal law; most Western nations consider using a computer to pilfer files in any of the aforementioned fashions to be a crime. In some states, for example, illegally accessing someone’s iCloud account and stealing his/her files could subject the perpetrator to criminal penalties including fines and imprisonment (depending on the degree and severity of the offense).

But, what about the people who have viewed, downloaded, or disseminated the photos, but who never hacked anyone?

In the United States, many states recognize celebrities’ “Right to Publicity” – that is, their right to profit from their celebrity status. This means that celebrities can potentially sue any party who profits off illegally obtained images of their likeness, in an effort to recover any profit that party has earned. Parties who disseminate such images – whether for profit or not – may also be subjected to an injunction to stop dissemination, and to force the images to be deleted.

From a practical standpoint, however, while celebrities might seek to recover damages from those who profit off of their photos, it is difficult for them to target the non-profiting parties; such parties would not only need to be identified, but also sued for injunctive relief in numerous different courts all over the country – an expensive and tedious process. As the costs to file and argue such cases can be considerable, and financial recovery may not be achieved – either because no profits were earned so as to be recovered, or the prospect of collecting on a judgment may be remote – people are unlikely to pursue such a course of action. And, of course, even if a celebrity were successful in obtaining an injunction against some parties, preventing others from distributing the photos could prove impossible. The bottom line is that once an image is leaked and spread on the Internet, it is likely “out there” forever – not just for technical reasons, but due to de facto limitations on legal recourse as well.

Complicating any lawsuit is also the fact that celebrities themselves would have to prove that they owned – or had rights to – the images in question. While such a requirement may sound strange to the layman – shouldn’t it be obvious that the celebrities involved have rights to the images since the they are the ones pictured? – under the law this is not a simple manner. United States copyright law normally gives copyright ownership of a photograph to its photographer, not to the subject in it. While obvious selfies would likely be found to be owned by the celebrities who took them, someone being sued about disseminating other pictures may claim that the celebrities portrayed in the images have no right to the pictures taken by others, and, therefore, no standing to sue; the burden would be on the celebrities to prove, among other things, that they obtained rights from the photographer, which also means being able to prove who took the picture. This may be complicated in situations in which a photo was taken during a previous relationship that has since ended, or, as often is the case, when the identity of the photographer cannot be proven.

Complicating matters even further is that once the leak of the photos became newsworthy (regardless of how exactly that is measured, it is likely that any such hurdle was overcome when it comes to this story), parties sharing the pictures – even on for-profit sites – can attempt to exert First Amendment rights; the media (which today, might include non-traditional media such as blogs) has the right to report the news. Celebrities may claim that there is no reason to share all of the photos in order to report the news, and such an argument may hold water, but what about if a news source were to provide only one or two example pictures? Considering how many news venues exist, all of the stolen pictures could potentially be shared in such fashion, with their sharers claiming First Amendment protections.

What is perhaps most fascinating is that under many areas of law the fact that those portrayed in the images are naked may be irrelevant. The issue is one of who owns the rights to the respective images, and whether privacy rights trump other competing rights. While it may seem strange to those of us not in the legal profession, in the eyes of some areas of law, the “victims” of this crime are not the celebrities who have been humiliated, but the people who own the rights to the photos.

However, the fact that the subjects were nude may have significant impact in other areas. A photographer needs authorization from a subject if he or she is to be photographed naked. The celebrity victims, could, therefore, potentially claim that the photos were made without their authorization; such a claim, however, might target the photographer and not the sharers, and seem highly suspicious considering that the photos appear to have been stored in the celebrities’ own iCloud accounts.

But, the issue is much broader. At least one celebrity – McKayla Maroney – has claimed through a representative that the photos of her were taken when she was underage; her representative warned anyone who had the images to delete them lest they risk being charged with possession and distribution of child pornography. This warning makes sense: if the photos involved were in fact pornographic, and were taken of an underaged subject, then they are illegal (at least in the United States) – unlawful to create, possess, or distribute. However, Maroney’s claim opens a can of worms: in many jurisdictions there is no exception in the law for child porn pictures of oneself. Maroney’s claim seems to amount to an admission that she, as an adult, was in possession of child porn; the same law that could be used to prosecute people disseminating the pictures could potentially be used to prosecute her for creating and possessing illegal material as well. Think this is far fetched? On multiple occasions, underage kids have gotten in hot water with the law for sexting photos of themselves; an adult is certainly not less culpable.

Another set of laws that might criminalize some of the behavior of people sharing the images are the so-called “revenge porn” laws found in some jurisdictions. These laws criminalize disseminating sexually-explicit photographs of anyone without his or her consent. But, what is “sexually explicit?” If black “modesty bars” were placed on the photos, could they be shared in these venues without fear of indictment? If the picture were already online, is re-sharing it from a jurisdiction with such laws a violation of the law? What about linking to the image without sharing the actual image file? This issue may not be as simple or straightforward as one would think. Also, revenge porn laws are presently in effect in only twelve states, plus the nations of Israel, Britain, and Germany, so most people sharing images that might otherwise be governed by revenge porn laws aren’t actually impacted by them (although people in some European countries might be impacted by privacy laws that effectively deliver similar protections in this regard to revenge porn laws). Also, there remains a possibility, that once an item is newsworthy, it may not be governed by revenge porn laws altogether.

Another possible way of charging people who possess and/or disseminate the photos could be to treat the images as stolen property – but, such an argument would require that the owner of the photo be established (which as discussed above, might not be possible in the case of many of the photos), would require involving law enforcement in many jurisdictions, and would open a Pandora’s Box: Does the government plan to treat every situation of data obtained without permission as stolen property and prosecute accordingly? We’d need to build hundreds of new jails! If the government won’t prosecute every case (as it certainly will not), applying such laws in the case of celebrity photos may be seen as (and would be) treating celebrities differently than others, a violation of our basic belief in equality.

Could people sharing the photos be charged with harassment? Perhaps, in theory, in some jurisdictions this might be possible, but, practically speaking, this is unlikely. After the photos were posted online, shared extensively, and viewed millions of times, did people who subsequently shared them really “harass” the celebrities in the photos? Can a celebrity truly testify that she was harassed by any particular sharer of the pictures?

The are additional laws that could apply as well. And, of course, there remains the issue of jurisdiction – what about the people viewing and sharing the photo in areas in which US law does not apply (the vast majority of the planet)?

The bottom line is that while it may be possible for people to be charged or sued for possessing or distributing the stolen nude celebrity photos, the vast majority of people involved are unlikely to be charged or even be forced to pay any financial compensation to the victims of the crime. It is also possible that the original hacker who stole the photos is not even the person who originally leaked them, meaning that even if the hacker were caught and imprisoned, it is possible that nobody who publicized the images will be punished. The combination of a complex blend of outdated laws and an immense number of jurisdictions with different rules has yielded a situation in which immoral and outlandish behavior is likely to go unpunished, and innocent people are humiliated.

This needs to change.

Properly crafted laws could criminalize the distribution of sexual or nude photographs known to have likely been obtained without permission of the subjects portrayed in them. Expanded adoption of revenge porn type laws that also incorporate protections for journalists legitimately reporting the news (while mandating that images not be used in such reports, or when necessary, utilized only with modesty bars or blurring) will keep us all safer. And, implementing such laws at a federal level, while encouraging other nations to do the same, will reduce complexity, and allow for a straightforward stand against behavior that is clearly unacceptable

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Joseph Steinberg (CISSP, ISSAP, ISSMP, CSSLP) is a respected cybersecurity expert, executive, and consultant, who is currently serving as C.E.O. of SecureMySocial, a provider of technology that helps businesses protect themselves from the risks of employee social media usage...